Devon McKenzie had less than a minute to enjoy life free from the threat of eviction.
She had gone to the Landlord and Tenant Board on Wednesday to fight a personal-use eviction issued by her new landlord, a first-time homebuyer who had taken on the title after purchasing just one per cent of the house where she rents.
The landlord withdrew the application, only to moments later issue a new one — effectively beginning the months-long ordeal over again.
McKenzie was three steps from the hearing room door when the property manager, on behalf of the landlord, handed her the new N12 eviction forms.
“Are you f—ing kidding me,” responded McKenzie. She later told the Star she has no choice but to fight to stay in her home. “It still comes down to I can’t afford to live anywhere else.”
It’s a case she and her lawyer say showcases a potential abuse of legal process — first in using the sliver of ownership to issue a personal-use eviction in a city where a lack of affordable rental units and no limit on what can be charged for empty apartments serve as incentives for landlords to push tenants out; and now, using the option to withdraw the application to avoid a full hearing and a decision that might not be in the landlord’s favour.
A transfer document from the Land Registry Office dated June 18 shows that a couple who own the home transferred a one per cent interest to 20-year-old Jacky Bai Jun Liu, worth $9,000.
Soon after the sale, Liu sent notices informing seven tenants in two units that he would be pursuing his right as a landlord to evict them so he could move in. The upstairs tenants had been planning to move and left, but McKenzie, who shared the downtown unit with roommates, was unwilling to relinquish her affordable housing, questioning how the law could give a one-per-cent owner the authority to evict, and decided to take the fight to the board.
In the meantime, Liu moved into the upstairs apartment. Downstairs, just McKenzie and one of her original roommates remain.
While the RTA does not specify how much of a property a person must own to be named a landlord, the board members who adjudicate hearings have the authority to decide whether the law is being used fairly and with the same spirit under which it was written.
McKenzie wanted a hearing to take place so that board members could review the section of law around ownership and produce a decision that, she hoped, could protect other tenants.
Before the application was withdrawn, both side entered into closed door mediation in an attempt to avoid a hearing. McKenzie said she was offered a 15-month lease if she would back down and she refused. Her counter-offer seeking compensation was also, she said, soundly rejected.
“I came at them with $30,000. It’s a year’s worth of rent, plus last month’s rent, plus the money I have had to put into figuring it out,” she said.
“It’s a really stressful situation and anybody that you talk to will tell you that going through something like this is a full-time job in itself.”
Rental housing law allows a landlord or tenant to withdraw an application up to the start of a hearing. McKenzie said her lawyer had warned her that if mediation failed the landlord would likely exercise that option and then a hearing would not take place.
In this case it was a fault on the part of the landlord that was used by his representative to argue in his favour.
Paralegal David Ciobotaru, representing Liu, argued that because his client had failed in his obligation as a landlord to pay McKenzie the equivalent of a month’s rent within 60 days of delivering the form the application was essentially void. Ciobotaru would not comment on the case. Liu did not speak during the hearing and declined to speak with the Star.
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Board member Nicola Mulima, speaking in the hearing room, said the current legislation left her little option but to approve the landlord’s request that the case be withdrawn.
“I don’t disagree that there are gaps in the legislation,” Mulima said. “There are gaps in the legislation throughout.”
Lawyer Stewart Cruikshank, with East Toronto Community Legal Services and who represented McKenzie, said withdrawing the application then immediately relaunching the case was a clear abuse of the N12 process.
“This is typical of what tenants face all the time under the present legislation,” said Cruikshank, speaking with the Star outside the hearing. “There is nothing requiring that landlords issue these notices in good faith.”
New rules could be coming as Ontario’s Progressive Conservative government has promised a review of the act with any potential legislative changes to take place in fall.
On the city side, a new protection of affordable rental housing subcommittee at city hall has been given a mandate that includes finding ways the city can better support tenants in cases where landlords could be abusing the act.
Members Paula Fletcher, Brad Bradford and Gord Perks will report back to the city’s planning and housing committee and potential abuse of the N12 process has already been identified as a point of focus for the subcommittee.
The bulk of the house where McKenzie rents belongs to George Chiang and Harriet Ho-Yin Chung who purchased the property for $230,000 in 2001, property records show. The couple are joint owners of 17 homes across the former city of Toronto, property records show.
McKenzie said Chung’s name has been on all previous documents related to her tenancy and the first time she read Liu’s name was when she got the notice informing her that he wanted her out. Chiang and Chung did not respond to multiple attempts to contact them by the Star. Chung did not appear at the hearing.
Based on the new forms that McKenzie was handed in the hallway Liu wants her to leave by the end of this year or again face the prospect of a hearing and an eviction.
“Now I am at the point where I don’t necessarily want to be there anymore,” she said. “But what they are doing is wrong and that is not OK.”